Karnataka High Court
Danayya Sangayya Gaddimath vs Miyasab .H. Lashakari on 17 February, 2016
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A.No.31270/2010
C/W
M.F.A.No.30636/2010 (WC)
M.F.A.No.31270/2010
BETWEEN:
Sri Danayya Sangayya Gaddimath
Age: 27 Years, Occ: Hamali
R/o Managuli, Tq: Basavan Bagewadi
Dist: Bijapur
... Appellant
(By Sri Sanganbasava B. Patil, Advocate)
AND:
1. Shri Miyasab H. Lashkari
Age: Major, Occ: Owner of Vehicle
R/o Managuli, Tq: Basavan Bagewadi
Dist: Bijapur
1A Smt. Aminbi
W/o. Late Miyasab Lashkari
Age: 81 years, Occ: H.H. Work
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1B Sri. Khashimsab
S/o. Late Miyasab Lashkari
Age: 54 years, Occ: Coolie
1C Sri. Haseempeer
S/o. Late Miyasab Lashkari
Age: 41 years, Occ: Coolie
All are R/o Managuli Village,
Tq: Basavan Bagewadi
Dist: Bijapur
As per order dated 04.01.2016
Proposed L/Rs of R-1 amended the cause title.
2. The Branch Manager
The United Insurance Company Ltd.,
S.S.Front Road, Bijapur - 586 101.
... Respondents
(By Sri Manvendra Reddy, Adv. for R2. R1 (A to C) are served,
un-represented)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, against the judgment and award dated
30.11.2009 passed in WC/SR No.55/2005 on the file of the
Labour Officer and Commissioner for Workmen
Compensation Sub Divi No. 2, Bijapur, partly allowing the
claim petition and seeking enhancement of compensation.
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M.F.A.No.30636/2010
BETWEEN:
The Branch Manager
The United Insurance Co. Ltd.,
... Appellant
(By Sri Manvendra Reddy, Advocate)
AND:
1. Sri Danayya
S/o Sangayya Gaddimath
Age: Major,
R/o Managuli, Tq: Basavan Bagewadi
Dist: Bijapur
2. Sri Miyasab H. Lashkari
Age: Major,
R/o Managuli, Tq: Basavan Bagewadi
Dist: Bijapur
As per the order of Hon'ble Court order
Dated 14.10.2015 amended the cause title.
2A Smt. Aminbi
W/o. Late Miyasab Lashkari
Age: 80 years,
2B Sri. Khashimsab
S/o. Late Miyasab Lashkari
Age: 53 years,
2C Sri. Haseempeer
S/o. Late Miyasab Lashkari
Age: 40 years,
All are R/o Managuli Village,
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Tq: Basavan Bagewadi
Dist: Bijapur
... Respondents
(By Sri Sanganbasava B. Patil, Adv. for R1.
R2(A to C) are served, un-represented)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, against the judgment and award dated
30.11.2009 passed in WCA No.55/2005 on the file of the
Workmen's Compensation Commissioner at Bijapur, partly
allowing the claim petition and awarding the compensation of
Rs. 79,693/- with interest at 12% P.A.
****
These MFA's coming on for Admission this day, the
Court delivered the following:
JUDGMENT
These two appeals are filed by the claimant as well as the insurance company, aggrieved by the judgment and order dated 30.11.2009 made in WCA/SR.No.55/2005 passed by the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division No.2, Vijayapur, (hereinafter referred to as 'WCC').
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2. MFA No.31270/2010 is filed by the claimant, being not satisfied with the quantum of compensation awarded by the WCC, whereas MFA No.30636/2010 is filed by the United India Insurance Company, aggrieved by the very same order, fastening liability on the insurance company to compensate the claimant.
3. Since the common judgment and order passed by the WCC is challenged in both the appeals, they are clubbed together and disposed of by this common judgment.
4. Appellant in MFA No.31270/2010 filed claim petition before the WCC contending that he was working as a hamali in a tractor and trailer bearing registration No.KA-28/T-7918-7819 and 7820 belonging to the first respondent in the claim petition. On 07.01.2005, as per the instructions of the owner of Tractor and Trailer, he was proceeding towards Muttagi village from Managuli village on NH-13. At that time, a lorry bearing registration No.AP- 16/8588 driven by its driver in a rash and negligent manner, 6 dashed against the Tractor and Trailer. In view of that, the claimant who was working as a hamali in the Tractor and Trailer sustained grievous injuries, fracture of femur and other injuries to all parts of the body. Immediately, after the accident, he was shifted to Civil Hospital, Bijapur. Thereafter, he had taken treatment in a private hospital. At the time of accident, the claimant was aged about 22 years and the owner was paying him a wages of Rs.3,000/- per month. The accident had occurred during the course and out of employment and the vehicle was covered by the insurance policy with the second respondent. In view of the injury sustained and fracture undergone, he was disabled to do the work of hamali and sought for compensation of Rs.9,25,000/-
5. In pursuance of the notice issued by the WCC, though respondent No.1 - owner of the vehicle served with notice, he remained unrepresented and was placed ex-parte.
6. The second respondent-insurance company filed the written statement denying the entire averments made in 7 the claim petition and also contended that there is no relationship of master and servant between the claimant and owner of the vehicle. Further, it was contended that the person travelling in the Tractor and Trailer is not covered by the insurance policy. The insurance policy is a farmer package policy. The coolie and hamali are not covered by the insurance policy. The compensation claimed is on the higher side and sought for dismissal of the claim petition.
7. On the basis of pleadings of the parties, the WCC framed necessary issues.
8. The claimant in order to prove his case, examined himself as PW.1. The doctor who has issued the disability certificate was examined as PW.2 and got marked the documents as Exs.P1 to P6. On behalf of the respondents, K. Manjunath Swamy, Officer of the insurance company was examined as RW.1 and the insurance policy was marked as Ex.R1.
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9. The WCC after considering the oral and documentary evidence let in by the parties and taking into consideration the other relevant records, held that the claimant has sustained injuries in the road traffic accident occurred during the course and arising out of employment. Hence, the claimant is entitled for compensation.
10. With regard to quantum of compensation is concerned, the claimant himself admitted that the owner was paying him a wages of Rs.3,000/- p.m. At the time of accident, the claimant was aged about 22 years. He has sustained fracture of femur shaft and other injuries to the body. He has undergone surgery. Implants have been inserted. The doctor who has treated the claimant has assessed the functional disability to an extent of 20% to 25% to the whole body. The WCC, taking into consideration the income of the claimant as Rs.3,000/- p.m. and taking 60% thereof, considering the disability to an extent of 20%, by applying the relevant factor of 221.37 has awarded the 9 compensation of Rs.79, 693/- with interest at 12% p.a. from 60 days after passing of the order. Being aggrieved by the judgment and order passed by the WCC, the claimant has filed MFA No.31270/2010 and the insurance company has filed MFA No.30636/2010.
11. The main contention of the claimant is that while awarding the interest, the WCC ought to have awarded the interest from one month after the accident instead of 60 days after passing of the order.
12. The Hon'ble Supreme Court in the case of ORIENTAL INSURANCE CO. LTD. vs. SIBY GEORGE & OTHERS reported in 2012 AIR SCW 4384, clearly held that the claimant is entitled for the interest @12% p.a. from one month after the accident.
13. With regard to contention of the insurance company is concerned, the issue is no longer res-integra. The Division Bench of this Court in the case of NATIONAL 10 INSURANCE COMPANY LIMITED vs. SRI MARUTHI AND OTHERS reported in ILR 2011 KAR 4139, held that the tractor and trailer put together becomes goods vehicle and it is statutorily covered by the insurance policy.
14. Further, in paragraphs 34, 35 and 36 of the said judgment, it is held as under:
34. As of now, there are only two types of policies envisaged under the Standard Forms as contemplated under Section 6 of the Indian Motor Tariff. Their liability under the liability only policy and package policy reads as under:
(i) Liability Only Policy: This cover Third Party Liability for bodily injury and/or death and Property Damage Personal Accident cover for Owner Driver is also included.
(ii) Package Policy: This covers loss or damage to the vehicle insured in addition to (I) above.
35. By reading the above two types of policies, it is clear package policy is nothing short of comprehensive policy with all the contents almost similar to the comprehensive policy which was in vogue earlier to the introduction of this package policy.
36. The fully worded policy now produced refers to limits of liability as envisaged in Commercial Vehicles 'B' Policy (Misc. & special type of vehicles). Section 1 refers to loss of damage to the insured vehicle, tractor- 11 trailer combination; Section-II refers to liability to third parties and Section-III refers to towing disabled vehicle. We are concerned with sub-Section (I) of Section II which reads as under:
Subject to the limits of liability as laid down in the schedule herein, the company will indemnify the insured against all sums including the claimants costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person (including the loading and/or unloading) of the Motor vehicle."
Hence, I find that there is no merit in any of the contentions raised by the insurance company. Accordingly, I pass the following;
ORDER MFA No.30636/2010 filed by the insurance company is dismissed.
MFA No.31270/2010 filed by the claimant is allowed in part. The claimant is entitled for interest at 12% p.a. from one month after the accident.
In all other respects, the judgment and order passed by the WCC is confirmed.12
The amount in deposit before this Court in MFA No.30636/2010 be transferred to the Civil Judge (Sr.Dn.), Vijayapur for disbursement.
Sd/-
JUDGE MSR/LG